Holding College Fraternities Liable for Non-Hazing Injuries

While the evils of hazing rituals at college fraternities are well known,
the overwhelming majority of injuries suffered at college fraternity houses
are not related to hazing at all. In a 2010 analysis of lawsuits related
to injuries at fraternities performed by Willis, a major insurer for fraternities
and sororities, hazing accounted for a relatively small 7% of injury-related
lawsuits. Topping the list were assault and battery, sexual assault, slip
and fall, fall from heights, and auto accidents. Many injuries in fraternities
also involve fatal and near-fatal falls from fraternity house roofs, windows,
and sleeping porches. One common feature of these lawsuits is that they
involved circumstances that are fueled by an excess of alcohol and an
absence of supervision.

Private universities have the ability to restrict access to fraternities
on their campuses, or have banned fraternities and sororities altogether.
However, because the First Amendment to the U.S. Constitution guarantees
freedom of assembly, public universities are prohibited from banning fraternities.
But how can a fraternity continue to operate in light of the obvious risks
of lawsuits for serious injuries that are both likely and preventable?

Fraternities and sororities are divided into numerous individual entities,
with a national corporation headquartered in one state and smaller entities
spread throughout the U.S. In many states, a local chapter cannot be sued
because it lacks any status as a legal entity. Accordingly, when you sue
the local chapter of a national institution, you are commonly suing an
entity that has no legal status and owns no assets. Another tool to insulate
fraternities from liability is to relinquish ownership in the fraternity
house to a housing corporation. The housing corporation then leases the
fraternity house back to the members of the chapter.

The Fraternal Information and Programming Group (FIPG) developed comprehensive
risk-management guidelines. More than thirty fraternities are members
of FIPG. (http://cmssites.theginsystem.com/uploads/fipg/userfiles/FIPG_MANUAL.pdf)According to FIPG, there are only two circumstances in which alcohol is
ever permitted at fraternity social events. The first is through hiring
a third-party vendor to check identification and sell and serve alcohol.
The other permissible option is through the BYO policy, which requires
that each guest (including fraternity members) bring only a limited number
of alcoholic beverages. Although known to be an option to keep individuals
safe, fraternities take few efforts to enforce these risk management guidelines.

Fraternities gain revenue by charging “loss prevention” dues
to their members which insure themselves against catastrophic injuries.
Rather than “loss prevention” policies, these are more aptly
characterized as “loss response” policies because they provide
insurance payments for the most tragic injuries that are bound to occur
but do little to prevent the injury from occurring.

In the event that these injuries do occur, fraternities (and their insurers)
frequently attempt to deny insurance coverage to the members of the fraternity
because they act in a manner that violates the risk management policies
that are inconsistent with the fraternity’s objectives. Oftentimes
it is the fraternity member’s parents that are on the hook for these
injuries. With substantial effort, time, and discovery, the national entity
can be held liable for these injuries based upon their involvement and
control over the local chapter.